SCOTUS To Decide How Many “Tries” To Convict

Apr. 8, 2016 (Mimesis Law) — The United States Supreme Court has recently granted cert on an important issue: if your convictions are reversed because of prosecutorial misconduct, do your acquittals on a closely related offense still keep you from being retried?

The named-petitioner in this case is Juan Bravo-Fernandez. He was the head of a Puerto Rican security company who decided to treat a member of the Puerto Rican Senate to a boxing match in Las Vegas, purchasing four tickets at a thousand dollars a pop. Coincidentally, the same day he booked the tickets, the senator submitted a bill that would favor the security industry. While in Vegas, the senator was treated to free hotel rooms and lavish dinners.

Years later, Bravo-Fernandez was charged with bribery, on the theory that he paid the senator’s expenses as part of a quid pro quo. But the jury ended up delivering a mixed verdict. Bravo-Fernandez was convicted of bribing the senator, but he was acquitted of traveling to commit bribery and conspiring to commit bribery. Which… doesn’t actually make a lot of sense.

He appealed, and the First Circuit Court of Appeals ended up tossing all of his convictions. The prosecutor and the judge had both told the jury that simply receiving a gratuity (like a free trip) constituted bribery even if there was no explicit agreement to do something in return. Some other, unrelated charges were tossed because they had not been crimes at the time that Bravo-Fernandez committed them.

Now Bravo-Fernandez was in an interesting position. He had been acquitted of traveling to another state to commit bribery. He had been acquitted of making an agreement to commit bribery. But he was still convicted of bribery. So he argued that by acquitting him of those related crimes, the jury had effectively found that he hadn’t committed the bribery either.

As Scalia was fond of saying, in the olden days you could be acquitted of stealing the horse and, shortly afterward, charged with stealing the saddle without violating Double Jeopardy. But the Supreme Court has made the rule a lot broader to avoid some troubling potential problems, namely, that the government will try you one piddling offense at a time to wear you down until you’re convicted.

But the First Circuit Court of Appeals ended up leaning more to the Scalia side of the equation, ruling that the jury might have just been acting irrationally when it acquitted Bravo-Fernandez. They could have thought the punishment was too harsh, or compromised to reach a verdict, or just made a mistake on the law. Basically, because Bravo-Fernandez couldn’t prove what the jury was thinking when they acquitted him (in part because he can’t ask them), he couldn’t show that they had found all the necessary facts in his favor.

It also pointed out that just because a conviction has been vacated by a court doesn’t mean that it’s now invisible. The jury may have convicted for the wrong reasons, sure, but that doesn’t mean that you just ignore their likely findings to convict to look at the acquittal.

These nonsensical compromise verdicts are not a bug. They are not the accidental result of charging a defendant with 60 counts in the hope that something will stick. To the contrary, they exist specifically because the government hopes that even those pushing for reasonable doubt will be reluctant to seem unreasonable by acquitting you of everything, especially when someone went to all the trouble of getting a grand jury to sign the indictment.

Any prosecutor worth his salt should be terrified by the implications of the petitioner winning here. Finding multiple ways of charging the same crime is pretty much the bread and butter of the conviction industry. If a reversal in a mixed-verdict case can lead to Double Jeopardy protections, then there will be serious risk in, for instance, charging a defendant with conspiring to, and actually committing, the same crime in the hope of having a fallback position with the jury.

As great as that result would be for criminal defendants, it is pretty likely that it would be unpopular with everyone else. After all, convictions do occasionally get overturned on what non-lawyers might call a “technicality.” There is always the risk that some confused jury could deliver a mixed verdict out of compromise, only to find the whole thing converted to an acquittal when the defendant’s rights are not honored in some way.

But that risk is the direct result of other choices that we have made in our system of justice. We have decided to create thousands of laws for a prosecutor to choose from. To allow a person to be charged a dozen different ways for the same crime. And to use a sentencing scheme that factors in acquitted conduct to make a partial win for the defendant just as punitive as a total loss. If the consequences of a decision for the petitioner mean that indictments for shoplifting won’t ring in at a dozen pages, then that is a price worth paying more than once.

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